GIVE ME THAT OLD-TIME CONSTITUTION

THE STRUGGLE BETWEEN ENVIRONMENTALISTS AND INDUSTRY OVER PRIVATE PROPERTY RIGHTS HAS TAKEN ON A RELIGIOUS FERVOR

On a hot July morning in Camp Verde, Ed Phillips, state senator and TV weatherman, briefs the Arizona Federation of Republican Women on the year's environmental legislation. He's light on his feet as he chatters pleasantly about the guy who waters his lawn and lets it run down the street, opines that making homeowners install efficient flush toilets infringes on their privacy. It's a good excuse to segue into some poopie jokes to make the gray-haired ladies titter and to set up a lighthearted tale that ends with him up on his roof to fix a faulty air conditioner.

"Is that the one you advertise on TV?" one of the ladies asks pointedly. It's a tough crowd.

He retreats into the recitation of bills, tries to mumble past Senate Bill 1053, the controversial private property act, but the audience stops him cold. What's that about?

He has no idea. And so he stammers a bit, says, "Well, you'd have to ask Mark Killian," then backpedals defensively to explain that there are so many issues brought before the Senate that one couldn't be expected to know the details of each, and he doesn't know that one.

"You voted for it," says a voice from the back of the room, and it strikes like a jab.

Precious few voters understand the bill, either, which is to its proponents' advantage.

The concept of Senate Bill 1053, the private property rights bill, is inarguably sound: If the government passes a regulation that unfairly deprives you of the use of your property, it must compensate you.

SB 1053 rides the crest of a national property rights movement that started with a 1988 presidential executive order issued by Ronald Reagan and that has flashed through state legislatures coast to coast like a computer virus.

However honorable the concept, though, there's a hidden agenda to the national movement, and that's to sidestep environmental regulations--especially wetlands and endangered-species regulations. As such, it goes hand in hand with the antienvironmental extremism that calls itself the Wise Use Movement, a loose coalition of extractive industry lobbies, people who own land surrounded by national forest, off-road vehicle and snowmobile enthusiasts and everyone else who may have a beef with limits on what they can do on public lands. Not surprisingly, the money behind the bill comes from the mining and timber and ranching and building industries.

Proponents of 1053 say the law protects the little guy who can't afford big-time lawyers to battle the regulations excreted by unelected bureaucrats.

Its opponents say it's an all-terrain vehicle to ride roughshod over a generation's worth of environmentalism. Critics of 1053 charge that it protects extractive industries unwilling to knuckle under to rules protecting air and water and endangered species. They fear that 1053 will unleash a barrage of nuisance claims, that industries will wave it in front of any government regulatory agency that tries to restrict them. In fact, with the ink barely dry on the governor's signature, one of the biggest landowners and ranchers in the state has already invoked SB 1053 in a claim that smacks of the Sagebrush Rebellion.

The environmental community was so threatened by the new law that it mobilized to gather petition signatures to force a statewide vote in 1994. The property rightists, of course, will challenge the referendum, but in the meantime, no one is sure if the bill stands as law.

Most city folks have no more idea what the bill is than Senator Phillips. While figuring out how to explain it to potential petition signers, says Rob Smith of the Sierra Club, "We spent about a week just trying to explain it to ourselves." Folks in Safford and Fredonia and St. Johns know exactly what 1053 is, however, and they look to it as a panacea to save the industries that float their economies. More than a legislative battle, this bill is a symbol of the biggest socioeconomic rift in America since the Vietnam War, pitting liberal urban environmentalists against conservative rural farmers, ranchers, miners and loggers. Arizona is this year's national battleground.

@rule:
@body:Property rights have long been a rallying cause for ultraconservative Americans, a constituency that quotes and interprets the U.S. Constitution as passionately as a fundamentalist quotes Scripture. The gospel according to the Founding Fathers is a scant clause at the tail end of the Fifth Amendment: No person shall ". . . be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation."

It's such a strongly held principle in American thought that it was repeated almost word for word in the 14th Amendment, and it means, basically, that if the government takes your property--a "taking," in legal parlance--it has to pay for it. Two hundred years after the Constitution was enacted, Ronald Reagan's 1988 Executive Order 12630 declared that "governmental actions that do not formally invoke the condemnation power, including regulations, may result in a taking for which just compensation is required."

The EO came in response to a number of U.S. Supreme Court rulings, notably a case in which the California Coastal Commission withheld a building permit until a landowner allowed a public easement across his beach lot. The Supreme Court held in favor of the homeowner, and told the Coastal Commission that if it wanted public use of the beach, it would have to pay for it.